- The Constitutional Court annulled a 2017 decision ordering Google to remove an anonymous blogpost from its platform Blogger for allegedly being defamatory. The controversial ruling had also instructed Google to actively remove anonymous defamatory contents upon notice, without judicial order (see Content Removal).
- Online disinformation was a prominent concern during the presidential election campaign in 2018. In attempts to discourage the proliferation of toxic content in the run-up to the election, candidates signed a pact to promote tolerance and the responsible use of social media for political debate (see Media, Diversity, and Content Manipulation).
- After a lengthy legal battle, an appellate court confirmed that biologist Diego Gómez was not guilty for sharing an academic paper online, clearing him of criminal charges that could have entailed four to eight years in prison (see Prosecutions and Detentions for Online Activities).
- In July, a court granted an injunction filed by a prosecutor to gain access to a journalist’s Facebook account, including its passwords, list of contacts, and message recipients. A constitutional complaint against this decision was unsuccessful (see Surveillance, Privacy, and Anonymity).
Colombia’s internet freedom improved slightly after a lengthy legal battle against a researcher for sharing an academic paper online ended. However, the online sphere remained constrained by persisting concerns over excessive surveillance, and a climate of threats and self-censorship.
Colombians voted in the first presidential election since a landmark 2016 peace accord between the government and left-wing FARC guerrillas. Political and social polarization surged online, as one study produced in April 2018 by the Electoral Observation Mission (MOE) found that 20 percent of conversations on social media contained hateful or intolerant messages.1 Despite the peace deal, an alarming wave of lethal attacks have targeted human rights defenders and activists, posing challenges for freedom of expression. Colombian press freedom groups have also denounced increasing threats against journalists.2 Self-censorship both online and offline has become a prophylactic measure against violence, particularly in rural areas where impunity is even more pervasive than in cities.
Poor infrastructure, low digital literacy, and high costs still hamper widespread access to the internet in Colombia. Although there are occasional cases of content removal, takedowns are isolated rather than systematic. During the coverage period of this report, the Constitutional Court ordered Google to remove an anonymous blogpost from its platform Blogger for allegedly being defamatory. The controversial ruling had also instructed Google to actively remove anonymous defamatory content without judicial order. After strong criticism among experts and digital rights groups, an action for annulment was successful in May 2018.
While prosecutions for dissemination of content online are rare, harsh penalties for minor copyright violations and criminal penalties for defamation continue to threaten users’ rights. This was the case of Diego Gómez, a biology student who faced criminal penalties for sharing someone else’s thesis on the digital content sharing platform Scribd, even though he did not claim authorship or profit from it. In a positive move in December 2017, an appellate court confirmed that the biologist was not guilty.
Poor oversight of government surveillance and revelations about illegal practices have raised concerns. Journalists have been subject to online and offline surveillance because of their work exposing corruption and irregularities within institutions such as the National Police. In July, press freedom groups protested an injunction filed by a prosecutor to access the Facebook account of a journalist, under investigation for slander after writing several articles about local corruption for a news site. A constitutional complaint against the decision was unsuccessful.
Although internet penetration has steadily increased, Colombia still faces obstacles to access primarily stemming from socioeconomic factors. The lack of basic utilities and affordable internet access constitutes an informal barrier to information and communications technologies (ICTs).
Availability and Ease of Access
Internet access has been on the rise in Colombia. Statistics published by the International Telecommunications Union (ITU) showed that the country’s internet penetration rate reached 62 percent by the end of 2017, up from 58 percent in 2016, and 36 percent in 2010.1 However, significant obstacles to access remain: lack of infrastructure in rural areas, low levels of digital literacy, and high prices all stand in the way of widespread access. Internet access is facilitated primarily by DSL and cable connections.2
Geographical disparities in internet access are significant in Colombia.3 In rural areas, many Colombian users access the internet outside of their homes: almost 24.5 percent accessed the internet through cybercafes and 43 percent through educational centers, while free public access points served just 8 percent of internet users.4
Although many indigenous languages are spoken in Colombia, there do not appear to be significant efforts to offer online content in these languages. Even the official websites of the territories of Amazonas, Vichada, and Guajira—each of which lays claim to a large indigenous population—are in Spanish, with options to view them in English, French, or Italian, but not local indigenous languages.5
High internet prices and low levels of digital literacy continued to present substantial obstacles to internet access. A 2016 digital consumers survey revealed that 46 percent of people without internet in their homes cited high prices as the reason for not acquiring service, while 34 percent stated that they did not think the internet was necessary.6 However, the latest Affordability Drivers Index (ADI) report, which measures policy and regulatory factors that can enable more affordable broadband, ranked Colombia in first place for a second year, citing government policies and partnerships with the ICT sector to improve affordability and access in the country.7
The ICT ministry has noted that internet access has increased thanks to official programs such as Vive Digital. Administered by the ICT ministry, Vive Digital aims to expand infrastructure, services, internet applications, and the number of Colombian internet users.8 Colombia Aprende, the Education Ministry’s platform for the promotion of literacy, launched in 2004, also aims to expand the use of digital applications and devices, training some 16,000 digital literacy teachers across the nation.9 However, critics have contended that the training is inadequate.10
At the end of 2016, the ICT ministry launched two initiatives to promote internet use: “Free Wi-Fi for the People” (Wifi gratis para la gente) and “Social Mobile Internet for the People” (Internet móvil social para la gente). The first initiative promotes the establishment of free internet access points in small cities and towns around the country11 , with a target of 1,000 access points by the end of 2018.12 The latter would offer low cost smartphones and mobile internet plans to new users with fewer resources.13 However, by the end of 2017, the low-cost program did not appear to be one of the ministry’s priorities.14
Restrictions on Connectivity
The government does not place limits on bandwidth, nor does it impose control over infrastructure, except in emergency situations when internet service providers (ISPs) are required to make their infrastructure available for official response.15 The government has not centralized telecommunications infrastructure and does not deliberately shut down internet or mobile connections.
Colombia only has one internet exchange point (IXP), called “NAP Colombia,” through which ISPs exchange traffic to improve efficiency and speed. Located in Bogotá, the IXP is managed by the Colombian Chamber for Informatics and Telecommunications.16
Colombia is home to 56 ISPs and, while approximately 85 percent of the market is concentrated in the hands of four companies, there are nonetheless multiple options for consumers and healthy competition.17 Market entry is straightforward, and it is possible for anyone to establish an ISP by following the general requirements of the ICT Law, which establishes free competition and prioritizes efficient use of infrastructure and access to ICTs.18
Registration requirements are neither excessive nor onerous. Business owners must provide personal and tax identification as well as a description of services, but no fee is required. This information is published in an open registry, and the ICT ministry has 10 days to verify the data before the business may begin operating. Registration can be denied when information is incomplete or false, or when an ISP does not have the proper commercial status to offer the necessary services.19 Service providers are obligated to pay a contribution of 0.01 percent of their annual income to an ICT Ministry Fund (Fontic) devoted to the development of nationwide ICT projects.20 ISPs must also apply for licenses to utilize the radioelectric spectrum, although there have been no complaints of difficulties or bias with this process.
The mobile landscape is more concentrated than the ISP market. Although there are nine providers, more than 90 percent of the market is in the hands of three companies: Claro, Movistar and Tigo.21 Like ISPs, mobile service providers must also contribute 0.01 percent of their annual income to Fontic.
Colombia’s ICT sector is subject to numerous regulatory bodies with varying but limited degrees of independence from the government. The three main regulatory bodies are the ICT ministry, the Communication Regulation Commission (CRC), and the National Spectrum Agency (NSA). The competition authority, the Superintendency of Industry and Commerce, also has some control duties as part of its consumer protection obligations.
The president appoints the ICT minister, who oversees the telecommunications sector through the ICT ministry. The ICT minister also chairs the CRC, which is responsible for ensuring efficient service and promoting competition in the telecommunications sector. It is made up of the minister and three commissioners who are also appointed by the president. The ICT minister designates the head of the NSA, which is the agency in charge of planning, managing and supervising of the use of the radioelectric spectrum. While some have suggested that such an executive-driven design prevents objective oversight of the sector and affords the president undue influence over its operations, to date, there are no clear examples of executive bias in rulings.22
In October 2017, the ICT Minister submitted a bill to create a new convergent regulator in charge of ICT, television and radio.23 However, there was no debate on the bill in 2018, and in early June the proposal was archived.24
Since 2010, a government-appointed concessionaire has been responsible for allocating the .co domain. For the domains org.co, edu.co, mil.co, and gov.co, applicants must comply with specific requirements; for edu.co, for example, the applicant must be an educational institution.25
- 1International Telecommunication Union, “Percentage of Individuals Using the Internet, 2000-2017,” http://bit.ly/1cblxxY
- 2Ministry of ICT, ICT Quarterly Bulletin, Q3 2017, http://bit.ly/2oDGutU
- 4DANE, Basic Indicators in ICT in Colombia 2016, April 7, 2017, http://bit.ly/2oMWoG3
- 5Official Website of the Department of Amazonas, accessed March 5, 2018, http://bit.ly/1JtV75d; Official Website of the Department of Vichada, accessed March 5, 2018, http://bit.ly/1KzLbeu; Official Website of the Department of La Guajira, accessed March 5, 2018, http://bit.ly/O9WQZ8
- 6DANE, Basic Indicators in ICT in Colombia 2016, April 7, 2017, http://bit.ly/2oMWoG3
- 7Alliance for Affordable Internet, “The 2016-17 Affordability Report,” http://a4ai.org/affordability-report/report/2017/
- 8ICT Ministry, “Vive Digital,” accessed September 1, 2017, http://bit.ly/1lbnQBQ
- 9Education Ministry, “Crea-TIC,” accessed September 1, 2017, http://bit.ly/2e3XWVu
- 10“Reto para profesores públicos: aprender a usar las Tabletas para educar,” Publimetro, February 20, 2015, http://bit.ly/1oONtAE
- 11Ministry of ICT, “Wifi gratis para la gente,” accessed May 13 2017, http://bit.ly/2qbwPhK
- 12Ministry of ICT, “Antioqueños ya tienen Zona Wifi Gratis, Punto Vive Digital Lab y 141 nuevos Kioscos Vive Digital”, accessed March 5, 2018, http://bit.ly/2oRGBnu
- 13Ministry of ICT, “Internet móvil para los colombianos más necesitados”, September 1, 2016, http://bit.ly/2bGImhW
- 14Enter, “¿Qué pasó con el internet móvil subsidiado que ofrecería el gobierno?”, August 23, 2017, http://bit.ly/2oHCmf2
- 15Law 1341, Art. 8, July 30, 2009, http://bit.ly/1WQQuL7
- 16NAP Colombia, “FAQ,” http://bit.ly/24ul175
- 17Telmex Colombia S.A., UNE EPM Telecomunicaciones S.A., Colombia Telecomunicaciones S.A., and Empresa de Telecomunicaciones de Bogotá, Colombia S.A. are the four dominant providers. Ministry of ICT, ICT Quarterly Bulletin, Q3 2017, http://bit.ly/2D0YK7i
- 18Law 1341 of 2009, http://bit.ly/1WQQuL7
- 19Decree 4948, December 18, 2009, http://bit.ly/1gVegGu
- 20Law 1341 of 2009, http://bit.ly/1WQQuL7
- 21Ministry of ICT, ICT Quarterly Bulletin, Q3 2017, http://bit.ly/2D0YK7i
- 22Carlos Cortés, “Mobile Internet in Colombia - Challenges and Opportunities for Civil Society: The 2013 Spectrum Auction,” Open Society Foundation, December 13, 2015.
- 23Ministry of ICT, MinTIC presenta al Congreso el Proyecto de Ley para crear un organismo regulador convergente, 17 October 2017, http://www.mintic.gov.co/portal/604/w3-article-60990.html
- 25Dominio, “Historia del Dominio Co,” [History of the Domain .Co], Cointernet, https://www.cointernet.com.co/historia-del-dominio/
Colombian internet users are able to view and disseminate content relatively freely. In the run-up to the first presidential election since the landmark peace accord with FARC, disinformation and toxic content proliferated on social media.
Blocking and Filtering
Blocking or filtering of political, religious, or social content is not common in Colombia.1 YouTube, Facebook, Twitter and international blog-hosting services are freely available.
Police and other institutions may limit content on a broad range of topics, from sexual abuse to “inappropriate content” or “other issues,” in order to protect minors.2 Child pornography which is illegal under international law is subject to blocking.3 Decree 1524 (2002) requires ISPs to undertake technical measures to prevent the online availability of child pornography.4 The possibility for civil or judicial oversight is limited because information about which websites are blocked is classified, possibly out of fear that individuals would use circumvention tools to access child pornography if a list of banned sites were made public.5
In March 2017, Colombia’s gambling regulator submitted a list of over 300 gambling sites to be blocked by ISPs, following the approval of online gambling legislation in October 2016, which requires gambling sites to apply for a license. The regulator found that the sites were operating without authorization.6
Apps that rely on the internet to provide commercial services, such as Uber, have been the center of much debate, and the government has been trying to regulate the service with little success. While the transportation ministry has argued in favor of blocking the app,7 the ICT ministry has invoked the net neutrality principle, which does not allow network operators to discriminate against specific content or services. ICT officials said that there are no legal grounds for blocking the app, which is not illegal.8 In June 2017, a Tribunal in Bogotá dismissed a complaint filed by the transportation ministry against Uber. However, the decision was taken because of the existence of a similar complaint filed by the taxi drivers’ leader.9
The Colombian government does not regularly order the removal of content, although periodic court cases have resulted in judicial orders requiring the removal of specific information deemed to violate fundamental rights. News outlets separately report threats intended to force them to remove content (see “Intimidation and Violence”).
In May 2018, the Constitutional Court annulled a controversial 2017 decision ordering the search engine Google Inc. to remove an anonymous blogpost from its platform Blogger for alleged defamation.10 The blog post had accused a furniture company “Muebles Caquetá” of scamming its clients. Digital rights groups had expressed concerns about the dangerous precedent this decision could have set for freedom of expression on the internet.11 The annulled decision had notably ordered Google, in general, to actively remove anonymous defamatory contents upon notice, without a judicial order.12
One site that publishes consumer complaints against a government entity was repeatedly accused of infringing on that entity’s trademark, resulting in the site’s removal. The site remained inaccessible during the coverage period of this report.13 The website icetextearruina.com was first taken down in March 2016 by hosting provider GoDaddy on the basis of a complaint from ICETEX, an official entity in charge of student loans. The website is owned by the Association of Users of Student Loans (ACUPE), a legally recognized organization that denounces allegations of abuse involving loans. Civil society organizations said ICETEX was abusing GoDaddy’s complaints system to censor the allegations.14
In a positive review in August 2017, the Constitutional Court ruled in favor of Educar Consumidores, a Colombian consumers’ association, and the public’s right to receive information about a health information campaign.15 A controversial ruling by the Superintendency of Industry and Commerce in September 2016 that forbade the dissemination of a clip raising awareness about the negative health impact of sugary drinks, including on the internet, had raised concerns for potentially encouraging prior censorship.16 Moreover, the authority asked Educar Consumidores to submit for review any content to be disseminated via any media, to check for inaccurate statements or poorly backed arguments and scientific facts.17 After civil society organizations challenged the authority’s decision as a violation of freedom of expression and access to information, in April 2017, the Supreme Court of Justice allowed the commercial to be broadcast.18
Publishing defamatory content created by others carries possible criminal penalties under the penal code (see “Legal Environment”). But court cases pertaining to content disputes have exempted search engines from liability for posting links to content in their search results.19 In May 2015, a court ruling strengthened the precedent that search engines should not be held liable for linking to content, even if the content has been found to violate the law.20 Although observers praised the fact that it exempted intermediaries from liability,21 some worried that the ruling might place an excessive burden on other digital content producers or publishers, because it required an online newspaper involved in the case to take steps to make the disputed information in question harder to find.22
Media, Diversity, and Content Manipulation
Colombia has several digital media outlets and online spaces for political debate, and Colombians are able to view and disseminate a diversity of content. However, social media platforms were dominated by battles between rival campaigns in the lead-up to the presidential elections in 2018.
Concerns about the spread of disinformation and hateful content on social media networks surged during the hotly contested presidential campaign in 2018. In the first few months of the year, the Electoral Observation Mission (MOE) found that 20 percent of conversations on social media contained hateful or intolerant messages.23 In February 2018, a Twitter user found that a network of media portals, normally specialized in motorcycles, pets, maternity, and sports, was being used to disseminate propaganda and misleading information favorable to presidential candidate Iván Duque.24 In February, a digital safety firm calculated how many fake followers the presidential candidates had on Twitter. More than 35 percent of the followers of the three most popular candidates on Twitter were fake.25
Many professional media enterprises thrive in Colombia’s largest cities and, in general, authorities do not interfere with their operations. However, there is a lack of media diversity in many regions. According to the Foundation for Press Freedom (FLIP), 19 out of 21 departments studied had no media presence to produce and disseminate local information.26 Out of almost 1,335 media outlets operating in those regions, only 113 were digital, due to the low internet penetration rate outside large cities.27
Self-censorship is a notable problem for journalists and likely affects online publications.28 According to a 2016 national survey of journalists by Proyecto Antonio Nariño (PAN), an alliance of organizations focused on freedom of expression and access to information, 25 percent of respondents stated that they avoided publishing information due to fear of aggression; 21 percent feared losing their jobs or having their media outlets closed; and 21 percent knew about media that avoided publishing information due to fear of losing advertising revenue. Between 40 and 66 percent believed that media outlets in their region modify their editorial positions to protect advertising revenue, depending on the region; 64 percent considered that the way official advertising is awarded is opaque; and 75 percent agreed that it is necessary to change the way in which official advertising contracts are allocated.29
Colombian social movements increasingly use online platforms for advocacy. Campaigns such as #CompartirNoEsDelito (“Sharing is not a crime”) have sought to promote open access to information and protest against Colombia’s intellectual property law, which carries harsh penalties and has been used to punish academics who shared research online (see “Prosecutions and Detentions for Online Activities”). Since 2011, the government has made four attempts to strengthen the legal framework for intellectual property in order to meet obligations under a trade agreement with the United States, but critics said the measures could make the situation worse.30 Advocacy efforts by civil society, copyright experts and the academic community, and pressure from social media, may have motivated lawmakers to put these initiatives on hold.31
- 1Communication from ICT Ministry in response to Request of Information Nº 661596, February 24, 2015.
- 2“Te Protejo” website, http://bit.ly/1n56U6s
- 3Communication from ICT Ministry in response to Request of Information Nº 661596, February 24, 2015.
- 4Law 679 of 2001, http://bit.ly/1RanTw8 ; Decree 1524, July 24, 2002, http://bit.ly/1NRSVKZ
- 5Communication 5245, ICT Ministry to Foundation for Press Freedom; See also: Law 679, Decree 1524, July 24, 2002, http://bit.ly/1NRSVKZ
- 6“Este viernes comienza el bloqueo de 325 páginas de azar ilegales,” El Tiempo, June 30, 2017, http://bit.ly/2truT7u; “Coljuegos prepara bloqueo a Poker Stars en el país,” El Tiempo, March 27, 2017, http://bit.ly/2nmW8um
- 7“Las consecuencias que podría traer desactivar a Uber en el país,” El Tiempo, September 7, 2016, http://bit.ly/2zb2SE3
- 8MinTIC, “El Ministerio de las Tecnologías de la Información y las Comunicaciones responde a la solicitud de medidas cautelares en contra de plataforma digital” [Ministry of ICT reacts to precautionary measures against digital plattform] March 23, 2017, http://bit.ly/2p9Vggp and Semana, “Uber es legal: MinTIC”, November 4, 2017, http://bit.ly/2zkDECw
- 9El Tiempo, “Tribunal declara nulo proceso de Mintransporte contra Uber”, June 15, 2017, http://bit.ly/2sg1slB
- 12Constitutional Court, Judgement T 063A/2017, February 3, 2017, http://bit.ly/2oiyT6b
- 13Isaza, L. “Icetex celebra un año de censura” [Icetex celebrates one year of censorship] Cero Sesenta, March 30, 2017, https://cerosetenta.uniandes.edu.co/icetex-celebra-un-ano-de-censura/
- 14“Bloqueo de página web por solicitud del ICETEX es una forma de censura” [Website blocking as per ICETEX demand is a form of censorship], Joint statement by Fundación Karisma and Fundación para la Libertad de Prensa, March 23, 2016, http://bit.ly/22Z1YQR
- 15Constitutional Court, Judgement T-543/17, August 25, 2017, http://bit.ly/2IdX5zf; https://www.dejusticia.org/corte-constitucional-reconoce-el-derecho-de-…
- 16“Este es el polémico comercial de bebidas azucaradas que sacaron del aire,” [This is the polemic sugary drinks ad that was taken out of air] El Espectador, September 8, 2016, http://bit.ly/2rnf80G
- 17Superintendency of Industry and Commerce (SIC), “Superindustria ordena retirar comercial de TV sobre supuestos efectos nocivos del consumo de bebidas azucaradas” [SIC orders withdrawal of TV ad about alleged nocive effects of sugary drinks consumption] September 7, 2016, http://bit.ly/2rnt2jm
- 18Supreme Court of Justice of Colombia. Ref. 11001-22-10-000-2016-00766-01 April 5, 2017. See also “Corte Suprema de Justicia decide a favor de la tutela interpuesta por la Alianza por la Salud levantando la censura al comercial de Educar Consumidores” [Supreme Court of Justice favours writ of protection presented by Alianza por la Salud, overruling censorship over Educar Consumidores’ ad], RedPaPaz. April 5, 2017, http://bit.ly/2rniQHE
- 19Constitutional Court, Judgement T-040/13, January 28, 2013, http://bit.ly/1FyIMlk; Constitutional Court, Judgement T-453/13, July 15, 2013, http://bit.ly/1R6lHaO; Constitutional Court, Judgement T-634/13, September 13, 2013, http://bit.ly/1OyMApE
- 20Constitutional Court, Judgement T-277/15, May 12, 2015, http://bit.ly/1iQCR1b
- 21Electronic Frontier Foundation, “Google to France: We Won’t Forget It for You Wholesale,” August 3, 2015, http://bit.ly/1P2iyYL
- 22Fundación Karisma, “Corte Constitucional colombiana decide sobre caso de derecho al olvido en Internet,” [Colombian Constitutional Court decides on right to be forgotten on internet], July 6, 2015, http://bit.ly/1FmskVr
- 24El Espectador, “La Máquina de noticias engañosas que ayuda a Iván Duque”, March 5, 2018, http://bit.ly/2I3JJVY
- 25Semana, “Cuál candidato tiene más seguidores falsos”, February 10, 2018, http://bit.ly/2BS2r32
- 26FLIP, “Cartografías de la Información,” https://flip.org.co/cartografias-informacion/
- 27FLIP, “Cartografías de la información: los medios en ocho regiones de Colombia,” [Information Cartographies: media in eight regions of Colombia], http://bit.ly/2hBnXgy
- 28Although there are studies concerning self-censorship among journalists, to date, there are none concerning self-censorship among ordinary internet users.
- 29Survey results on Freedom of Expression and Access to Information in Colombia, September 2016, http://bit.ly/1VDzisl
- 30The first was rejected in Congress; the second, although it became law, was declared unconstitutional by the Constitutional Court; the third project lost the support of the national government; the last one was introduced to Congress, but later withdrawn.
- 31“Manisfestación virtual contra la llamada Ley Lleras 2” [Virtual protest against the so-called Lleras 2 Law], El Colombiano, http://bit.ly/1QnK069; “La nueva ley Lleras recarga el ciberespacio de protestas,” [The new Lleras law fills cyberspace with protests], El Colombiano, March 28, 2012, http://bit.ly/1QnPYnn.
Although prosecutions for online expression are rare in Colombia, harsh penalties for minor copyright violations and criminal penalties for defamation pose a serious threat to users’ rights. In December 2017, an appellate court confirmed that a biologist who faced up to eight years in prison for copyright violations was not guilty for sharing an academic paper on the website Scribd. Although the government has taken some positive steps to prosecute actors who conducted illegal surveillance in recent years, concerns remain over widespread surveillance and violations of privacy.
Article 20 of Colombia’s National Constitution guarantees freedom of information and expression and prohibits prior restraint. Article 73 further provides for the protection of “the liberty and professional independence” of “journalistic activity.” Although there are no specific provisions protecting freedom of expression online, bloggers have the same liberties and protections as print or broadcast journalists.1 The Constitutional Court confirmed the application of such protections to the internet in a 2012 ruling.2
However, Colombia maintains criminal penalties for defamation, which have been applied to online speech. According to the Colombian penal code, individuals accused of insult can face up to six years in jail and a fine, while individuals accused of libel can face between fifteen months and four and a half years in jail, also with possible fines.3 Cases pertaining to online defamation have occasionally been brought before the court with varying outcomes.
The penal code includes a concerning provision regarding online publication or reproduction of insults. According to Article 222 of the penal code, “whoever publishes, reproduces, or repeats insult or libel” may also be subject to punishment. This article raises concerns as it leaves open the possibility for charges of indirect insult and libel. The penal code also establishes the use of “social mediums of communication or of other collective divulgence” as an aggravating circumstance that can increase the penalty for insult or libel.4 However, courts have not held intermediaries responsible for defamatory content created or shared by third parties.
Prosecutions and Detentions for Online Activities
Prosecution, imprisonment, or detention for ICT activities is quite rare in Colombia, and writers, commentators, or bloggers are not systematically subject to imprisonment or fines for posting material on the internet.5
Colombia has harsh penalties for copyright violations and lacks the flexible fair use standards employed in many countries. One recent case involved Diego Gómez, a student who was charged in 2014 with violating copyright violations for uploading an academic thesis onto Scribd. The author of the thesis filed a criminal complaint.6 Digital rights groups heavily criticized the decision to prosecute Gómez, especially when he did not claim to have authored the thesis and did not profit by sharing it.7 In a positive development in May 2017, a court cleared Gómez of criminal charges.8 In December 2017, this decision was confirmed on appeal.9
Colombia’s first online criminal defamation sentence set a concerning precedent for violations of user rights. In November 2015, the press freedom group FLIP reported it had submitted a petition to the Inter-American Commission on Human Rights,10 after Colombian courts convicted Gonzalo López, an internet user who anonymously posted a comment criticizing a public official on a news website.11 López was sentenced to 18 months and 20 days in prison and issued a fine, although he did not serve jail time based on provisions in Colombian law that allow certain defendants to avoid imprisonment depending on their sentence and prior record.12
Surveillance, Privacy, and Anonymity
Episodes of extralegal surveillance carried out by intelligence agencies, the army or the police, have constituted an ongoing scandal in Colombia in recent years. Some steps have been taken to punish perpetrators of illegal surveillance, although it seems unlikely that these efforts have changed the overall environment, as intelligence agencies continue to operate with minimal oversight. Concerns about illegal surveillance by certain sectors of the government and military persist, with investigative journalists continuing to uncover privacy violations by the police and military.
Several Colombian civil society organizations have criticized the excessive and apparently uncontrolled use of surveillance tools in the country, which they argue has been facilitated by “weak legislation” on intelligence matters.13 In July 2015, documents leaked from the technology company Hacking Team, which is known to provide spyware to governments, suggested that the Colombian government had contracts with the company. Leaked emails referenced the National Police Office’s purchase of Hacking Team’s Remote Control System (RCS) called “Galileo,” which is capable of accessing and hijacking the target devices’ keyboard, microphone and camera. Police would only acknowledge having contractual ties with a Colombian company called Robotec, which distributes Hacking Team’s services,14 though the leaked documents indicate that the National Police contacted Hacking Team directly to activate spyware.15 Another leaked email suggested that the U.S. Drug Enforcement Agency (DEA) may be conducting surveillance in Colombia.16
In September 2015, police reportedly said that they would start testing a centralized platform for monitoring and analysis known as PUMA. They said telephone lines would be subject to monitoring, but not social networks and chats.17 The Prosecutor General’s office had earlier ordered police to stop developing PUMA because of the lack of transparency and insufficient guarantees to ensure its lawful use. Journalists initially reported that the government was investing over US$100 million in a monitoring platform in 2013. The system was intended to provide the government with the capacity to intercept telephone and internet communications in real-time, including private messages.18
Courts have sought to rein in illegal surveillance, sentencing former public officials involved in wiretapping scandals. Several former heads of the now dismantled government Administrative Security Department (DAS), notably Fernando Tabares, Jorge Noguera, and Maria del Pilar Hurtado, were convicted for illegal wiretapping. Bernardo Moreno, former secretary of the president’s office, also received an 8-year prison sentence, on charges of illegally intercepting private communications of journalists, politicians, and civil society groups.19 During this period of coverage, Jorge Noguera was called to trial again and sentenced to 94 months in prison for his part in illegal interception activities against human rights defenders, journalists, and civil society organizations.20 Military officials were fired in early 2015 following a high profile wiretapping scandal.21
While intercepting personal communications in Colombia is authorized only for criminal investigation purposes and legally requires a judicial order,22 service providers are required to collaborate with intelligence agencies by providing access to the communications history or technical data of any specific user without a warrant.23 Service providers are obliged to retain data for the purposes of criminal investigations and intelligence activities for a period of five years.24 Colombian law also allows intelligence agencies to monitor devices which use the electromagnetic spectrum to transmit wireless communication without a judicial order.25 An additional threat to user privacy comes in the form of Article 2 of Decree 1704 (2012), which requires that ISPs create backdoor access points for criminal investigation purposes—which can be used under the Prosecutor General’s authorization. A service provider that does not comply with these obligations faces fines and could lose its operating license.26
Civil society organizations have raised privacy concerns about several provisions of a new police code published in July 2016. Article 32 defines the right to privacy in narrow terms, only recognizing the right of individuals “to meet their needs and develop their activities in an area that is exclusive and therefore considered private.” On the other hand, Article 139 broadly defines “public space” to include the electromagnetic spectrum. According to organizations such as Dejusticia, such provisions would undermine privacy protections for communications travelling through the electromagnetic spectrum.27 In January 2017, Dejusticia filed a complaint against these provisions. The Constitutional Court had yet to decide on the complaint.28
Colombia has no general restrictions against anonymous communication, and there are no registration requirements for bloggers or cybercafé owners, though users must register to obtain telecommunication services. Police have access to a database that must be maintained by telecommunication service providers. This database contains user data, such as name, ID number, place and residence address, mobile phone number and service activation date.29 Users must provide accurate information under penalty of perjury, which is punishable by a minimum of six years in prison.30
In April 2017, the Prosecutor General announced a proposal to force WhatsApp and other internet intermediaries to decrypt user’s communications for law enforcement purposes.31 Even though the proposal has not been presented, the announcement raised concerns about state’s surveillance ambitions, as well as officials’ lack of understanding regarding technology like encryption.32 (Providers that encrypt communications end-to-end cannot decrypt them.) Since 1993, Colombian law has banned the use of “communication devices that use the electromagnetic spectrum” to send “encrypted messages or messages in unintelligible language.”33 In response to an information request, the ICT ministry explained that those provisions apply only “to the content of the communications, not the encryption of the medium.” Despite the ambiguous wording of the law, the ICT ministry further claimed that these provisions only apply to radio-like devices and not to the internet.34 The Intelligence and Counterintelligence Act stipulates that telecommunications service providers may only offer encrypted voice services to intelligence agencies and “high government” officials.35
A request to access a journalist’s social media account as part of an investigation into alleged slander sparked criticism among press freedom groups during this period of coverage. In July 2017, a court granted an injunction filed by a prosecutor to gain access to a journalist’s Facebook account, including its passwords, contacts list and message recipients. FLIP filed a constitutional complaint against this request on behalf of the journalist. However, the complaint was not successful.36
Intimidation and Violence
Corruption, longstanding armed conflict and associated surveillance, and the war against drugs are the greatest threats to freedom of expression in Colombia, although online journalists have not been attacked as often as print journalists. There is no broad trend of retaliation specifically for online content, but the high level of intimidation towards media and human rights defenders creates a climate of fear that also affects online journalists.
According to FLIP, at least 18 journalists have been murdered and many more have been threatened since 2005.37 Impunity for perpetrators of violence—a pervasive problem in Colombia’s judicial system—is ranked by the nonprofit PAN’s Freedom of Expression and Access to Information Index as one of the gravest threats to freedom of expression.38 Colombia has the third highest impunity rate on the Global Impunity Index by the Center for Studies on Impunity and Justice Institute.39
The number of reported threats against journalists has also increased significantly during 2017 and 2018.40 In reaction to death threats, popular cartoonist Matador said he would stop using and publishing his work on social media.41 FLIP registered four attacks against female journalists via social media during 2017. One case regarded Spanish journalist Salud Hernández, who was talking on a radio show about a constitutional complaint that was filed against her by a leader of FARC. An anonymous Twitter account quoted Hernández and wrote a threat against her.42
In 2017 and 2018, FLIP recorded at least ten cyberattacks against websites, after it began systematically tracking these types of incidents.43
Various types of cybercrime, including hacking, illegal interception and use of data, and the distribution and use of malware are criminalized under Law 1273, which was passed in 2009. Penalties range from three to four years’ imprisonment, along with fines.44 While phishing—the stealing of sensitive personal data via malware disguised as legitimate email—appears to be a significant issue in Colombia,45 most evidence of hacking and other interception has involved interagency spying and intelligence work carried out primarily by the government, the army, and other official bodies (see “Surveillance, Privacy, and Anonymity”).
Following a scandal that implicated military officials in wiretapping abuses in early 2014, President Santos announced the creation of a commission to strengthen national cybersecurity.46 Colombia partnered with the Organization of American States (OAS) to develop the Colombian Cyber Emergency Response Group (coICERT) and the Cyber Police Center (CCP).47 A digital security policy released by the government in April 2016 covered issues ranging from national defense and the protection of critical infrastructure, to cybercrime and digital risk management.48 Civil society groups criticized the policy for focusing on military and economic issues at the expense of broader social and human rights concerns.49
- 1Several decisions of the Constitutional Court state that Freedom of Expression is a universal right. See for example: Constitutional Court, Judgement C-442/11, May 25, 2011, http://bit.ly/1YG6pic
- 2Constitutional Court, Judgement T550/12, January 18, 2012, http://bit.ly/1VfPNt8
- 3Art. 220-222 of the Penal Code, http://bit.ly/1LC0FAz
- 4Law 599 of 2000, Criminal Code, Title V, http://bit.ly/1ZcoeFG
- 5The only documented case of an individual going to jail took place in 2010, well before the timeframe of this report. See: “Crónica del ‘Falso Positivo’ de Facebook en nueve episodios,” La Silla Vacia, May 4, 2010, http://bit.ly/1L6Fv9U.
- 6“Diego Gómez y la importancia de los bienes comunes” [Diego Gómez and the importance of common goods], Pillku Amantes de la libertad, December 17, 2015 http://bit.ly/1oHMK3u
- 7“Compartir no es un delito” [Sharing is not a crime], El Espectador, July 16, 2014, http://bit.ly/1laphQ5; “Compartir no es un delito,” Las 2 Orillas, December 26, 2014, http://bit.ly/WaUTQ6
- 8Timothy Vollmer, “Colombian Court Acquits Diego Gómez of Criminal Charges for Sharing a Research Paper Online,” Creative Commons, May 24, 2017, http://bit.ly/2qwrxiI
- 9Karisma, “Tribunal de Bogotá confirma fallo: biólogo Diego Gómez es absuelto de los cargos por violación al derecho de autor”, December 4, 2017, http://bit.ly/2kogB4B
- 10FLIP, “Caso de Gonzalo López se presenta ante la CIDH,” [Case of Gonzalo Lopez presented to IACHR], November 20, 2015, http://bit.ly/1kLxuRK
- 11Colombian law does not prohibit anonymity, so the fact that the post was anonymous did not influence the charges against López.
- 12Carlos Cortés, “Crónica de una ofensa inofensiva,” [Chronicle of an unoffensive offense], La Silla Vacía, April 17, 2015, http://bit.ly/1ODNXEl
- 13FLIP, CCJ, Dejusticia, Fundación Karisma and Colnodo, “Colombian Police Ought to Clarify Their Relationship with ‘Hacking Team’,” July 30, 2015, http://bit.ly/1KzZHD4
- 14“Policía indicó no tener vínculos comerciales con firma Hacking Team” [Police declared that there are no commercial links with Hacking Team], El Tiempo, July 8, 2015, http://bit.ly/1WnPXRJ
- 15Carolina Botero and Pilar Sáenz, “In Colombia, PUMA is not what it seems,” Digital Rights Latin America & The Caribbean, August 24, 2015, http://bit.ly/1JuchzP
- 16Ryan Gallagher, “Hacking Team Emails Expose Proposed Death Squad Deal Secret UK Sales Push, and Much More,” The Intercept, July 8, 2015, http://bit.ly/1PCTFmi
- 17“Plataforma Puma de la Policía entrará en operación, pero limitada,” [Puma Platform will enter into operation, but limited], El Tiempo, September 30, 2015 http://bit.ly/1TtnbAj
- 18Daniel Valero, “Policía Podrá Interceptar Facebook, Twitter y Skype en Colombia” [Police will be able to tap Facebook, Twitter y Skype in Colombia], El Tiempo, June 23, 2013, http://bit.ly/1Mv2bmO
- 19“Condena de 14 años para Hurtado y 8 para Bernardo Moreno por chuzadas,” [Sentence of 14 years to Hurtado and 8 years to Bernardo Moreno for ‘Chuzadas’], El Tiempo, April 30, 2015, http://bit.ly/1biN0yV
- 21"Purga en inteligencia de las Fuerzas Militares por escándalo de Andrómeda” [Purge in intelligence services and military forces because of Andromeda scandal], Blu Radio, January 23, 2015, http://bit.ly/1iAIJdW
- 22Constitution of 1991, art. 250, http://bit.ly/1KLrfTl
- 23Statutory Law 1621, art. 44, April 17, 2013, http://bit.ly/1LDxHQX
- 24Decree 1704 of 2012 and Law 1621 of 2013
- 25Statutory Law 1621, art. 17, April 17, 2013, http://bit.ly/1LDxHQX; See also: Constitutional Court, Judgement C-540/12, 2012, http://bit.ly/1IdXI2t
- 26Decree 1704, 2012, art. 7. http://bit.ly/1YGdzTA
- 27Privacy International, Dejusticia, Fundación Karisma, “Submission in advance of the consideration of the periodic report of Colombia, Human Rights Committee, 118th Session, 17 October – 04 November 2016,” September 2016, http://bit.ly/2irBIhM
- 28El Espectador, “Dos nuevas demandas contra el Código de Policía”, January 30 2017, https://bit.ly/2JyTix3
- 29Law 418 of 1997, art. 99, http://bit.ly/1Gw5sg9; and Resolution 0912, 2008 of the National Police, Diario Oficial, Año CXLIV, Nº 47.233, January 15, 2009.
- 30The penal code outlines penalties for perjury of bearing “false witness.” Penal Code, art. 442, http://bit.ly/1S3N9sT.
- 31“Fiscalía pide mayor acceso a redes sociales de judicializados” [Prosecutor’s Offices demands better Access to convicted’s social networks]. El Colombiano. March 30, 2017. http://bit.ly/2pDF18e
- 32Larotta, S. “Romper el cifrado de Whatsapp, una mala idea” [Break WhatsApp encryption. A Bad Idea], April, 2017. http://bit.ly/2pDLArq
- 33Law 418 (1997) art. 102, http://bit.ly/1PXVz1z
- 34Communication Nº 811811, ICT Ministry to Karisma Foundation, April 27 of 2015.
- 35Statutory Law 1621, art. 44, April 17, 2013, http://bit.ly/1LDxHQX
- 36Fundación para la Libertad de Prensa (FLIP), “La FLIP rechaza la autorización de juez para ingresar a la cuenta de Facebook de periodista en Buga”, 06 July, 2017, http://bit.ly/2GaNIj3
- 37Fundación Para La Libertad de Prensa (FLIP), “Estos son los periodistas asesinados en Colombia por causas asociadas a su oficio” ”, http://bit.ly/2Ieuv0A
- 38Survey results on Freedom of Expression and Access to Information in Colombia, September 2015, pg. 43-46, http://bit.ly/1VDzisl
- 39Centro de Estudios sobre Impunidad y Justicia, “Índice Global de Impunidad 2015,” [Global Impunity Index 2015], Universidad de las Américas Puebla, April 2015, pg. 39-42, http://bit.ly/1KPhqdy
- 42FLIP, “Estado Depredador”, February 2018, https://bit.ly/2ERek8f
- 43See: https://flip.org.co/index.php/es/atencion-a-periodistas/mapa-de-agresio…
- 44Rachel Glickhouse, “Explainer: Fighting Cybercrime in Latin America,” Americas Society/Council of the Americas Online, November 14, 2013, http://bit.ly/1FyUXP1
- 45Mimi Yagoub, “Cyber Crime in Colombia: An Underestimated Threat?” InSight Crime, July 11, 2014, http://bit.ly/1PCXnMS
- 46“En Ciberseguridad, ‘Estamos en Pañales’ y Expuestos a Todo Tipo de Ataques: Santos” [In Cybersecurity, ‘We are in Diapers’ and Exposed to All Kinds of Attacks], El Espectador, February 8, 2014, http://bit.ly/1d6jM4J
- 47Phillip Acuña, “Colombia to receive cyber-security assistance from international experts,” Colombia Reports, March 31, 2014, http://bit.ly/1YGfveW; Carolina Botero Cabrera “Intimidad vs Seguridad un año después” [Privacy v. Security one year after], El Espectador, April 2, 2015, http://bit.ly/1DBAHEA.
- 48Ministry of ICT, “Colombia cuenta con una Política Nacional de Seguridad Digital” [Colombia has a National Digital Security Policy], April 13, 2016, http://bit.ly/1SACmC0
- 49Castañeda, Juan Diego, “Qué es el conpes de seguridad digital y por qué está mal” [What is the CONPES of digital security and why is wrong?] Fundación Karisma, June 3, 2016, https://karisma.org.co/que-es-el-conpes-de-seguridad-digital-y-por-que-…
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Global Freedom Score64 100 partly free
Internet Freedom Score65 100 partly free